Thursday, October 18, 2007, 10:29 AM

Unsupervised Notice to Potential Plaintiffs in Case against The Body Shop

In a case filed against The Body Shop, a New York District Court refused to sanction the plaintiff's attorney or strike consent forms filed by potential class members even though the court found the attorney's mass mailing to potential plaintiffs to be misleading and inaccurate. In Rubery v. Buth-Na-Bodhaige, Inc. ("The Body Shop"), another misclassification case, the plaintiff alleged that The Body Shop failed to pay its shop managers overtime in violation of the FLSA.

In an effort to find additional plaintiffs without supervision by the court, plaintiff provided her counsel with a list of shop managers she had obtained during her employment at The Body Shop. Using the list, along with publicly-available address listings, plaintiff's counsel sent letters to individuals believed to be shop managers at The Body Shop seeking participation in the case. The letter stated that the attorney had obtained the recipients names "from documents provided by The Body Shop and the Plaintiff" even though The Body Shop had never provided any such information to the Plaintiff and had specifically refused to provide such information. The attorney also enclosed an offer of judgment served by The Body Shop on Plaintiff. Although the letter contained disclaimers attempting to explain that the offer of judgment was not an admission of guilt, the enclosure of the letter was clearly intended to convince potential plaintiffs that the case had merit. The court admitted that the enclosure of the offer posted a potential danger of misleading potential plaintiffs "into believing that defendant ha[d] at least partially conceded the merits of plaintiff's case, or that the plaintiffs may reasonably expect to receive similar offers or similar damages if they join the lawsuit."

Instead of sanctioning the attorney or striking the consent forms filed as a result of the letter, the court held that the inaccuracies could be remedied by the issuance of a corrective notice in the event class certification was granted. Counsel was directed to ensure that any and all future contacts with the potential class members were "straightforward, accurate, and free of misleading omission."

The court’s decision in the Rubery case illustrates how important the initial certification stage of FLSA collective actions is and why courts should be involved in the notice to potential plaintiffs. Although the court indicated that the inaccuracies could be remedied at a later stage, the damage is already done and The Body Shop will be forced to fight an expensive discovery battle with additional plaintiffs.